1984 PLP (C (PLC(CS))

MUSHTAK ALI KAZI (CHAIRMAN).-The appellants who are Excise and Taxation Inspector, Sub-Inspector and Excise and Taxation Inspector, respectively, have preferred these service appeals against the orders of dismissal from service passed against them by the Secretary, Excise and Taxation Department, by an order, dated 27th July, 1978. The facts leading to these three connected appeals in brief are that one Mr. A. D_. Shahid Malik was apprehended by the above officials from the vicinity of his house, on 5th March, 1978 and was detained in the Excise office with the object of extorting illegal gratification from him under threats of implicating him in a case of smuggling of narcotics. Mr. Ejaz Malik brother of Shahid Malik came in search of his brother and he too was detained and threatened, Mr. Ejaz Malik is alleged to have paid Rs. 45,000 to these officials but they made a fresh demand for additional bribe of Rs. 20,

000. Accordingly on 8th March, 1978 a complaint was lodged with the Director-General, Excise and Taxation Sind, Karachi: As a result of this complaint, the three appellants and four other officers of the Excise and Taxation Department. were placed under suspension by the Director, Excise and Taxation, on 13th March, 1978. A charge-sheet was served on them on 3rd April, 1978 signed by the Director-General, Excise and Taxation, Karachi, Mr. Salahuddin Qureshi, Director, Excise and Taxation then conducted the departmental enquiry and submitted his report, dated 5th July, 1978. He found Messrs Iqbal Bajwa, Anisuddin and S. A. Mukarim as being directly involved in this case of extortion. Against the remaining officers no tangible evidence had been obtained in respect of the main charge and they ware exonerated. The 'report was forwarded to the Secretary, Excise and Taxation Department who under his order, dated 27th July, 1978 on the recommendations of the Authorized Officer namely Director-General, Excise and Taxation, Sind dismissed the three appellants from service under the Sind Civil Service (Efficiency and Discipline) Rules. The dismissed officials filed tentative appeals addressed to the Chief Secretary, Government of Sind on 30th August, 1978. Pending decisions on these appeals they also filed service appeal under section 4 of the Sind Service Tribunals Act, -1973, on 27th December, 1978. By a common judgment the three service appeals were summarily dismissed as time-barred by the then Tribunal with Justice (Rtd.) Ghulam Rasool Shaikh as Chairman on 30th January, 1979. The appellants preferred appeals on the question of limitation to the Supreme Court. The appeals of the present appellants alongwith other appeals involving common question regarding limitation were heard together by a larger Bench of the Supreme Court and by a majority judgment all such appeals were found to have been filed within time and these three appeals were remanded to the Service Tribunal for being heard on merits according to law. Meanwhile two of the three departmental appeals were decided by the Chief Secretary by an order, dated 14th April, 1980. The appeal of Mr. Iqbal Bajwa, Excise and Taxation Sub-Inspector was rejected but the appeal of Mr. S. A. Mukarim was partly allowed. His order of dismissal from service was set aside and was substituted by an order of compulsory retire ment from service, with effect from 27th July, 1978. The appeals remanded by the Supreme Court were admitted for regular hearing after notice to the appellant on 15th March, 1982. On 20th February, 1983 the learned Advocate for the appellants filed an application for amendment of the memo. of appeal in case of Mr. S. A. Mukarim. Since the final hearing had already been fixed, arguments were heard on all the three appeals together. It has been argued by Mr. Z. U. Ahmed that while these appeals were pending in the Supreme Court of Pakistan, appellant S. A. Mukarim received an order, from the Chief Secretary, Government of Sind com municating the order, dated 14th January, 1980 converting the penalty of dismissal into that of compulsory retirement, He accordingly prayed for permission to file an amended memo of appeal incorporating the above amendment under Order VI, rule 17, C.P.C. The appeal was remanded by the Supreme Court and was admitted after notice to the Advocate for the appellant, on 15th March, 1982 but even at that time no application was moved for amendment, though accord ing to para. 1 of the application this order had been communicated by the Government to the appellant, when proceedings for leave to appeal were pending in the Supreme Court. This application has been filed nearly one year after admission, after the final hearing had been fixed and some preliminary legal objections had already been heard and disposed of any order, dated 27th January, 1983. The original appeal had been filed against the impugned order dismissing the appellant from service, that order has since been vacated and a new appellate order has been passed. Under section 4 of the Sind Service Tribunals Act, 1973 a civil servant aggrieved by the "FINAL ORDER" whether original or appellate made by a depart mental authority could prefer the service appeal to the Tribunal within 30 days of the communication of such order. After the appellate order was passed that order became the final order and it was open to the appellant to prefer a fresh appeal within 30 days of communication of that order, before the Tribunal. He however, did not care to do so even after the appeal had been finally heard before the Supreme Court and the case remanded. The amendment of the memo of appeal cannot be allowed at this stage because the appellant cannot be allowed to amend the memo. of appeal by introducing new cause of action after the appeal against such cause of action had become barred by. limitation. Any such amendment would defeat the purpose of section 4 of the Sind Service Tribunals Act as meanwhile a right has accrued to the other side, J for pleading a valid defence of limitation. Leave to amend is according refused in case of appellant. S. A. Mukarim and since the old appeal filed by him has since become infructuous the impugned order, .of dismissal having been set aside, his appeal is dismissed as being not maintainable. In the remaining two appeals Mr. Z. U. Ahmed has rained the legal plea that in these two cases after the report of the Enquiry Officer regarding the grounds for action against these two appellants, no show-cause notice was issued to them nor was the copy of the Enquiry Officer's report fur nished to them for preparing their defence, as observed by the Supreme Court in the case of Syed Mir Muhammad v. N.-W.F.P. Government (1). Regarding this legal plea the learned A. A.-G. Mr. Hassan Akbar frankly concedes that the two appeals of Mr. Anisuddin and Mr. Iqbal Bajwa appellants may be remanded for want of notice and non-furnishing of the report of Mr. Salahuddin to the appellants, before passing the order of dismissal. The above judgment of the Supreme Court has already been reproduced and discussed in several appeals and a detailed discussion of the application of these principles would not, therefore, be necessary. It may be pointed out in nutshell that furnishing of the enquiry report and issue of a show-cause notice were found necessary not only on principles of natural justice but also under the Efficiency and Discipline Rules; the explanation required from the accused at the stage of issue of charge-sheet is only of a preliminary nature and a stage for a proper explanation of the accused officer is reached after the evidence is recorded and the Enquiry Officer formulates his comments in regard to the findings and the action proposed to be taken against him on the basis of those findings can only be furnished) at that stage, if he is supplied a copy of the enquiry report. The cases of appellants Anisuddin and Iqbal Bajwa are accordingly remanded to the Director-General, Excise and Taxation after setting aside the order of dismissal passed against them. The Authorised Officer may proceed from the stage from which the error could be corrected namely by supplying the copies of the findings of the Enquiry Officer to the appellants and calling upon them to submit their explanation in regard to the material brought against them and the action proposed to be recommended by the Authorized Officer. It may be observed that these directions were issued by the Supreme Court in the above-cited similar case for the reasons stated. Principles of natural justice are to be read in every statute. The Supreme Court also found the proper stage for show-cause notice even under the Efficiency and Discipline Rules to have been reached after the findings of the Enquiry Officer and reaching of the conclusions regarding the penalty to be imposed. Since no decision has been reached on facts, no opinion can be expressed regarding them and it would be premature at this stage to pass any orders regarding the payment or otherwise of any arrears of salary during the intervening period. The appeals are disposed of accordingly in the above terms with no order as to costs. A. E. Cases remanded.